500 Days: Secrets and Lies in the Terror Wars

by Kurt Eichenwald

  Downstairs, the conversation had turned to the legality of the CIA’s requests. The Office of Legal Counsel, Ashcroft said, was already working on that analysis.

  “All right, John,” Rice said. “But I’d like you to review their work personally.”

  • • •

  Yoo reached a preliminary finding that certain of the CIA’s proposed tactics, such as confinement, were lawful. The analysis of others, like waterboarding, was going to take more time.

  • • •

  Two dark wooden boxes were placed in a room at the secret prison where Zubaydah was confined. One looked something like a coffin; the other was much smaller.

  Soufan saw the larger box and was horrified. His mind raced with questions and fears. Was the CIA planning to bury Zubaydah alive? He immediately confronted the agency interrogators.

  “We’re the United States of America, and we don’t do that kind of thing!” he shouted. “Has anybody given you the legal authority to do what you’re doing?”

  One of the officers brought out a document. “This has been approved at the highest levels in Washington,” he said, waving the paper in Soufan’s face. “These approvals are coming from Gonzales.”

  The White House counsel.

  Soufan didn’t care who had approved this; he wanted no part of it. He stormed off to a secure phone. His bosses at the FBI, he decided, needed to know what was happening.

  • • •

  “I swear to God,” Soufan shouted, “I’m going to arrest these guys!”

  On the other end of the line, Pasquale D’Amuro, the bureau’s assistant director for counterterrorism, spoke in measured tones, trying to calm Soufan. He understood his concerns, D’Amuro said. This wasn’t the way that the FBI would do the job. But the CIA was in charge.

  Soufan, he said, should just come home. Gaudin would join him a few weeks later.

  • • •

  When the time came to use the boxes, the interrogators started with the larger one, placing Zubaydah inside and putting a cover on top.

  His movements were severely restricted. The heat was oppressive and Zubaydah found it difficult to breathe. Sweat, pressure, and friction combined to make it impossible for him to squirm into a comfortable position. He was left inside for up to eight hours at a time.

  The smaller box was worse. It was shorter than Zubaydah, forcing him to crouch down as long as two hours. Once again, he could not move.

  Over time, the CIA’s Office of Medical Services would deem that the cramped confinement technique should no longer be used. The problem: It was too much of a relief for the detainee, since being sealed inside the box offered hours-long breaks from interrogation. This experimental, untested technique simply didn’t work.

  • • •

  On the afternoon of May 8, two FBI agents from New York were hiding in a utility closet near U.S. Customs at Chicago’s O’Hare International Airport, preparing to confront a suspected terrorist.

  Outside the door, a passenger who had just arrived from Zurich was speaking with Andy Ferreri, a customs agent. Ferreri asked the man for his passport and declaration form. He read the name on the documents.

  José Padilla. The American who had just been identified by Abu Zubaydah as an al-Qaeda terrorist planning to detonate a dirty bomb.

  Ferreri searched Padilla’s belongings and found a wad of cash—$10,526. But Padilla had declared only $8,000.

  “Sir, I’m going to have to confiscate this currency,” Ferreri said. He escorted Padilla about twenty yards to a conference room and asked him to sit down.

  Ferreri left the room and walked to the utility closet. He went inside and told the two FBI agents—Russell Fincher and Craig Donnachie—about the cash Padilla had been carrying.

  The investigators had flown in that day from New York, where they worked with the counterterrorism squad. Almost a dozen other Chicago-based FBI and customs agents had been assigned to help in the confrontation with Padilla, mostly by making sure he didn’t escape or hurt anyone.

  After briefing the two agents, Ferreri took them to the conference room where Padilla was waiting. About eight other FBI and customs agents stood guard at the door.

  Fincher and Donnachie went inside accompanied by two colleagues, R. J. Holley and Todd Schmitt. A long table surrounded by almost two dozen chairs dominated the room. Padilla had settled near one end.

  Fincher sat down at Padilla’s left, while Donnachie took the chair to his right. Holley and Schmitt sat at the far end of the table; they would be only observers. Just before 3:15, the agents brought out their credentials.

  “Mr. Padilla, my name is Russell Fincher, and I’m an FBI agent. This is Craig Donnachie, and he’s also an FBI agent, as are our colleagues at the other end of the table.”

  He stared directly into Padilla’s eyes. “We need to ask you some questions,” he said.

  “All right.”

  “We’ve been made aware of the ten thousand dollars that you were carrying into the country. Would you be willing to talk to me about where it came from and what you were planning to do with it?”

  Padilla shrugged. “Sure.”

  • • •

  A good FBI interrogation rarely starts with hard questions that might frighten a suspect into silence. Instead, agents lob a few softballs to lull the interview subject into a false sense of security.

  That’s where Fincher began, asking Padilla for basic information—his date of birth, Social Security number, and address in the United States.

  “I can’t provide you with a U.S. address,” Padilla replied. “I’ve lived outside the country since 1998.”

  “Well, where do you live now?” Fincher asked.

  “In Egypt. In Cairo and Tanta.”

  “All right. And what are your addresses in those cities?”

  Padilla thought for a moment. “I don’t remember,” he said.

  The first lie, the agents thought.

  “Well, then just give me a description of those residences,” Fincher said.

  “I’m sorry. I can’t really say.”

  “You can’t describe the places where you live?”

  “No,” Padilla said. “I’m not good with that kind of thing.”

  The second.

  “Well, what’s your phone number in either location?”

  “I don’t know.”

  Third.

  “You don’t know your own phone number? How to reach your family?”

  “I don’t remember.”

  “Do you have a cell phone?”

  “Yes. I just bought a new one. But I can’t remember the number. It’s a new one, so I can’t remember.”

  Fourth.

  This line of questioning wasn’t going anywhere.

  “Why have you come to Chicago?”

  “I’m on a trip to visit my mother and my son.”

  His mother’s name, he said, was Estela Ortega Lebron. He handed Fincher a slip of paper with her name, address, and phone number on it. The note also instructed him to ask for Estela Lebron.

  “The thing is,” Fincher said, “you haven’t arranged to travel from Chicago to Florida. Why not?”

  “I’m in Chicago to visit my son,” he said. He gave the boy’s name and said that he was about twelve or thirteen years old.

  “And where does your son live?”

  “I don’t know.”

  Lie number five, maybe six.

  “I’m planning to call my mother to find out how to contact him,” Padilla said.

  The boy lived with his mother, he added, somewhere in the northwest section of Chicago. He himself had never really been close with the mother, Marisol Rivera. He got her pregnant when her boyfriend was in prison. When his son was born, Padilla said, he took the last name of the boyfriend.

  Fincher returned to Padilla’s background, and the memory lapses vanished. He could name the streets where he had lived, the three schools he had attended before dropping out in the seventh grade, and other details.
He had drifted aimlessly, Padilla said, and had joined the Latin Disciples gang. When he was thirteen years old, he murdered someone and was arrested; he served five years in St. Charles Juvenile Detention Center. Afterward, he lived with his mother in Florida and took a busboy job at a Hilton Hotel but again succumbed to the lure of gang life. He was arrested in 1991 on a weapons charge and was sent to prison for about a year.

  It was there, Padilla said, that his life was transformed. First, he met a fellow inmate who was a member of the Nation of Islam, the African-American religious movement founded in Detroit. Padilla didn’t agree with everything the man said, but it set him to thinking about Islam. Then he got into a fight with another inmate and was thrown into solitary confinement.

  “And it was during that time I had a dream that seemed really important,” Padilla said. “In just a brief moment in the dream, I saw myself floating and wearing a black hood and a robe.”

  “Why was that important to you?” Fincher asked.

  “It was a vision. It’s what inspired me to focus intently on studying Islam.”

  After his release, Padilla said, he began his religious training in Florida, then in 1998 moved to Egypt. He attended a university there and studied under several tutors.

  “What were the tutors’ names?” Fincher asked.

  “I don’t remember.”

  Lost count.

  “How did you find them?”

  “I really couldn’t say.”

  Fincher pressed for more details about the university, to no avail.

  In either 1999 or 2000, Padilla said, he had made a pilgrimage to Mecca during the holy month of Ramadan. There, he met two men, one who asked him to move to Saudi Arabia, and the other who pressed him to come to Pakistan. He decided to travel to Pakistan, where there were schools that could help him speed up his study of Islam.

  “What were the names of the two men you met?”

  “I don’t remember.”

  A few minutes later, at 4:25 P.M., Fincher said that they should take a break so that Padilla could have dinner and visit the restroom.

  • • •

  At 5:35, the interview resumed.

  “Let’s talk about the money you were carrying when you arrived here.”

  “Oh, I’m happy to tell you about that.”

  Fincher brought out Padilla’s customs form that he had filled out on the plane. “You claimed here that you were carrying about eight thousand dollars. But you really had more than ten.”

  “I was tired when I filled that out,” Padilla said. “I didn’t count it correctly.”

  “Were you aware that U.S. law requires you to declare amounts of ten thousand dollars or more when you enter the country?”

  “No, I didn’t know that.”

  Fincher sat back in his chair. “Come on. This is absurd. You’re coming into the United States, carrying this huge sum of money, to visit a relative in a distant city. But you don’t have any travel arrangements? That doesn’t make any sense.”

  “That’s why I came, to visit my mother and son,” he insisted. In fact, he said, he wanted to call his mother.

  “Why do you want to call her?”

  Padilla shook his head. “Never mind. Let’s just finish.”

  Back to the money. Where did it come from?

  “A man in Egypt gave me some of it in an envelope,” Padilla said. “I also received money in Pakistan.”

  Some of it was just income, money he was paid for teaching English in Egypt and Pakistan. “Muslims in both countries also gave me some of it as a donation, so I could visit my mother and son in the United States,” he said. “I also want to take my son to Puerto Rico once I meet with him in the U.S.”

  A few more questions about the money, the same evasive replies. Time to see if he would disclose the types of people who were his associates.

  “Is there anyone in Egypt or Pakistan that you particularly admired or trusted or befriended? And are there any events you want to elaborate on?”

  “There are many people and events,” Padilla responded. “But I really can’t recall any of them. I’m just too tired from traveling.”

  Fincher kept pushing, and Padilla kept pleading exhaustion. “I might be able to tell you more if I was more rested,” he said.

  That would be fine, one of the agents said. They could resume the interview in the morning.

  “Listen, I’ve been here a long time and I’ve answered all your questions,” Padilla responded. “I want to call my mother. And I’m worried about my money. But I’m done. I don’t want to talk to you tomorrow.”

  “A few more questions,” Fincher said. “Tell me the countries you’ve traveled to.”

  “I’ve only been to Switzerland, Egypt, Pakistan, and Saudi Arabia.”

  “Ever been to Afghanistan?”

  “No,” Padilla said. “Never.”

  “Now, you recently got a new American passport while you were in Pakistan,” Fincher said. “What happened to your old one?”

  “I lost it in a marketplace in Karachi. I reported it lost to the U.S. consulate there and got a replacement.”

  “Did you sell your old passport to anyone?”

  “No.”

  “Did you tell the consulate the truth about how you lost it?”

  “Of course.”

  “Okay,” Fincher said, “what’s the name of the market where you lost the passport?”

  “I don’t know the name.”

  “Well, what area in Karachi is the market in?”

  “I don’t know that name either.”

  At 6:10, Fincher called another break.

  • • •

  They resumed ten minutes later. Padilla seemed testy.

  “I want to get my money back,” he said. “I don’t know what’s happening to it. And I want to talk to my mother.”

  Again, the agents suggested they stop for the night and resume the questioning in the morning.

  “I don’t want to spend the night in a hotel, and I don’t want to speak with you tomorrow.”

  Still, Padilla again continued answering questions for another few minutes. Perhaps, one of the agents suggested, their standoff could be resolved if Padilla agreed to take a polygraph.

  “No, I’m not going to do that,” Padilla said. “You don’t need it. I’m being cooperative. And there’s no scientific basis for those tests.”

  He had answered all of their questions, Padilla said. He wanted to leave. He wanted to call his mother and visit his son.

  Fincher took a breath. The soft-spoken and polite approach wasn’t working. It was time to try confrontation.

  He suddenly turned his chair toward Padilla and leaned in.

  “Let me tell you what I think,” he said, his voice raised. “I think you have been to Afghanistan. I think you had military training there and met with high-ranking al-Qaeda officials. I think they sent you back to Pakistan, where you met up with other associates. And I think you left Pakistan en route for somewhere to commit an act of terrorism.”

  For a full minute, Fincher laid out in rapid fire the details he had been holding back. Padilla had been delayed in his travels. He was accompanied by another foreign national who was using a false passport. He and the other man had been detained in Karachi. He had traveled from Zurich to Egypt and back before flying to Chicago. And he had come to the United States to conduct surveillance for a terrorist attack.

  Padilla’s face was expressionless. He jumped out of his seat. “This interview is over,” he said. “It’s time for me to go.”

  Wait, Fincher said, standing. “I’d like you to volunteer to work with me and help me understand the things I’ve presented to you,” he said. “If you don’t want to volunteer, I’m going to serve you with a grand jury subpoena and compel your testimony in New York City.”

  Fincher brought out the subpoena and showed it to Padilla. A second passed. Padilla looked puzzled.

  “What’s a grand jury subpoena?” he asked. “What woul
d happen if you served me with it?”

  The agents would take him to New York, Fincher said, and he would be brought before the grand jury. He would have to answer questions. If he lied, he could be charged with perjury.

  “But if you volunteer to go, we’ll put you up in a hotel tonight and then take you to New York tomorrow.”

  “Would I be represented by a lawyer?”

  “If you want one,” Fincher replied, “We could arrange it.”

  Padilla paused. A haughty look spread over his face.

  “I’m not going to volunteer to go to New York,” he said, sounding cocky. “If you want me to go, you have to arrest me.”

  Damn. Fincher wanted a witness, not a defendant.

  “I do have a material witness arrest warrant in your name,” he said. “But I would much rather you volunteer the information than serve you with the warrant.”

  Again, Padilla looked confused. “A material witness warrant?”

  That meant the government believed Padilla knew information that was relevant to a criminal investigation, Fincher said. A federal judge had reviewed the FBI’s evidence and agreed that Padilla could be detained to testify before the grand jury. He had signed the warrant just before Padilla’s plane landed.

  Fincher reflected for a moment. Padilla had repeatedly invoked his mother during the interview, at one point fretting about what she might think if she heard the FBI was questioning him. That was an angle to use.

  “I’m concerned that if I serve this, it’s going to go on your arrest record,” he said. “I know you’ve had a clean record for ten years. I’m worried that if I have to arrest you, your mother is going to think you’re in some kind of trouble again.”

  Padilla stayed silent.

  “José, I don’t need and I don’t want to arrest you.”

  “I’m not going to volunteer,” Padilla responded. “You want me in New York, you have to arrest me.”

  Fincher sighed. “All right.”

  He brought out a pair of handcuffs.

  “José Padilla, I’m arresting you pursuant to a material witness order.”

  Fincher read him his Miranda rights.

  • • •

  Three weeks had passed since Frank Dunham sent his letter to Norfolk Naval Station asking if Hamdi wanted a lawyer, and he had received no reply. Stung by the brush-off, Dunham decided to turn to the courts.